CACR 26 will do great harm

On Nov. 6 voters will be asked to decide the fate of CACR 26, an amendment to the New Hampshire Constitution that allows the Legislature to meddle in court affairs — a bad idea.

Constitutional Amendment Concurrent Resolution 26 reads, in part, “the legislature and the chief justice of the supreme court shall have concurrent power to make rules governing the administration of all the courts of the state.” In the event of conflict, however, CACR 26 gives the final say to the Legislature.

Make no mistake, CACR 26 is an attempt by House Speaker Bill O’Brien’s wing of the state Legislature to put a hand in the justice system’s cookie jar. CACR 26 follows on the heels of the establishment of a House Committee on the Redress of Grievances which was set up to do an end run around the courts. This was pointed out in a recent community commentary by former governor Steve Merrill and former New Hampshire high court justice Joseph Nadeau:

“We do not have to guess why some legislators want to change the Constitution. At a recent Strafford County forum, supporters told us. They said they intend oversight of court rules and decisions so they can change results they do not like. In fact they have already shown that intention. After 150 years, the legislature in 2011 revived the Redress of Grievances Committee. That committee is not required to obey rules of law and evidence, and was used by legislators to intrude into private disputes, especially family law cases — even ones already decided in the courts.”

The pretext for CACR 26 can also found in a recent community commentary by state Reps. Daniel Itse and Paul Ingbretson, the latter of whom happens to be chairman of the Redress of Grievances Committee (Foster’s Sunday Citizen, Oct. 21).

Itse and Ingbretson argue the courts should be under the control of “we the people.” And if Ingbretson’s Redress of Grievance Committee is any indication of what that means, CACR 26 would bring chaos to the court system. CACR 26 would allow the Legislature to establish court rules and to use those rules to punish judges for seemingly errant decisions as the redress committee seeks to do.

Former Chief Justice John Broderick, now University of N.H. Law School dean, addressed this issue in a recent community commentary:

“This proposed amendment represents a step backward. The framers sought to protect the separation of governmental powers because they had lived under regimes that respected no dividing lines, when the legislature could invade the province of the judiciary for purely partisan reasons or, perhaps, without any reason at all.” (Foster’s Sunday Citizen, Oct. 21)

The core mission of the court system is to stand as an independent branch of government, to serve in a system of checks and balances with the executive and legislative branches. Thankfully, New Hampshire is a state were judges are appointed, not elected. Here, judicial nominees go through a rigorous, non-political vetting process. This is not to say the editorial board here at Foster’s Daily Democrat or voters should be expected to agree with every decision coming from the bench. But it is to argue those who hand down those decisions are well qualified to do so, with rare exception.

As for “we the people,” proponents of CACR 26 forget that “we the people” live under a representative republic. As such, “we the people” elect others to make decisions on our behalf. If, come election time, we don’t like those decision the choice is to oust those previously elected, not to unseat judges through back door manipulation.